IRS Answers Questions on Same-Sex Couples

Post Date: 10/26/12
Last Updated: 10/26/12

Summary

Cross References
• www.irs.gov

Author's Comment: Earlier in the year, we reported on a District Court decision (Winsor, U.S. Dist. Court Southern Dist. of N.Y., June 6, 2012) that ruled the Defense of Marriage Act (Public Law 104-199) was unconstitutional. This federal law defines marriage for federal tax purposes as only a legal union between one man and one woman as husband and wife. The Court ruled the surviving spouse of a same-sex couple legally married under state law was allowed the unlimited marital exemption under the federal estate tax. The 2nd U.S. Circuit Court of Appeals ruled in favor of the District Court decision on October 18, 2012, making it the second federal appeals court to reject part of the Defense of Marriage Act. Appeals in several cases are currently pending before the U.S. Supreme Court. The IRS is apparently not following these Court decisions and instead choosing to interpret tax law according to the Defense of Marriage Act as written. The following is taken directly from the frequently asked questions on the IRS website as of August 4, 2012.

The following questions and answers provide information to same-sex domestic partners, same-sex individuals in civil unions and same-sex couples whose marriage is recognized by state law (for convenience, these individuals are referred to as “same-sex couples” and each individual is referred to as a “same-sex partner” in these questions and answers).

Q. Can same-sex partners who are legally married for state law purposes file federal tax returns using a Married Filing Jointly or Married Filing Separately status?
A. No. Same-sex partners may not file using a Married Filing Separately or Married Filing Jointly filing status because federal law does not treat same-sex partners as married for federal tax purposes.

Q. Can a taxpayer use the Head of Household filing status if the taxpayer’s only dependent is his or her same-sex partner?
A. No. A taxpayer cannot file as Head of Household if the taxpayer’s only dependent is his or her same-sex partner. A taxpayer’s same-sex partner is not one of the related individuals described in the law that qualifies the taxpayer to file as Head of Household, even if the same-sex partner is the taxpayer’s dependent.

Q. If a child is a qualifying child under IRC section 152(c) of both parents who are samesex partners, which parent may claim the child as a dependent?
A. If a child is a qualifying child under IRC section 152(c) of both parents who are samesex partners, either parent, but not both, may claim a dependency deduction for the qualifying child. If both parents claim a dependency deduction for the child on their income tax returns, the IRS will treat the child as the qualifying child of the parent with whom the child resides for the longer period of time. If the child resides with each parent for the same amount of time during the taxable year, the IRS will treat the child as the qualifying child of the parent with the higher adjusted gross income.

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